HomeMy WebLinkAboutCity Attorney Services RFP - BBK AmendmentSTAFF REPORT
CITY OF PALM DESERT
CITY MANAGER'S OFFICE
MEETING DATE: March 28, 2019
PREPARED BY: Christopher Gerry, Management Analyst
REQUEST: Consideration of options for city attorney services.
Recommendation
By minute motion, City staff requests City Council consideration of the following options:
1. Direct City staff to issue a Request for Proposal for contracted city attorney services; or
2. Direct City staff to extend the agreement with Best Best & Krieger for contracted city
attorney services for an additional five years under the same terms and conditions of
the existing agreement.
Background Analvsis
Since incorporation (1973), the City of Palm Desert has contracted its city attorney services.
The City has an existing agreement with the law firm Best Best & Krieger (BB&K), which
terminates on August 14, 2019. The City Council can elect to continue to contract with BB&K
after that date, or can consider selecting a different law firm to perform these services.
Seeking new and competitive proposals for performing contract city attorney services is a 90
to 120 day process, for which City staff now seeks City Council direction before proceeding.
Furthermore, on February 14, 2019, Councilmember Jonathan requested an analysis of
appointing in-house legal counsel in lieu of having contracted city attorney services. After
performing this requested analysis, City staff recommends that the City Council select one of
the above options. Please note that agreements for specialty legal services (e.g., Successor
Agency to the Redevelopment Agency and Housing Authority) will return separately for City
Council consideration in the future. The remaining staff report and attachments comprise the
requested analysis.
Frequencv Analvsis
City staff examined the frequency of use of the two counsel types in other jurisdictions.
Frequency as a metric is intended to display best practices across jurisdictions. After
reviewing 30 jurisdictions ranging incrementally in size, there were eight jurisdictions (27%)
that retain in-house counsel. Moreover, of the cities retaining in-house counsel, five of those
jurisdictions (62.5%) have populations exceeding 80,000; whereas, the other three
jurisdictions (37.5%) had populations of less than 50,000. Based upon this data set, the delta
between counsel types generally appears in jurisdictions with populations exceeding 80,000.
An analysis of frequency can be found as Attachment A.
March 28, 2019
City Attorney Services
Page 2 of 4
Cost Analvsis
City staff examined the City of Palm ❑esert's budget and expenditures for city attorney
services, including supplemental legal services, for the last three fiscal years. While all legal
expenditures are displayed below, many costs associated with supplemental legal services
will still be required, regardless of counsel type. Upon review, the City's average budgeted
amounts versus actual expenditures over the last two complete fiscal years is about $860,000
and $830,500, respectively. The table below displays the aforementioned budgeted amounts
and expenditures.
� neiainci
t Other Legal Services
Successor Agency—
j Housing
FY 2017-18
Retainer
Other Legal Services
Successor Agency "
Housing
FY 2018-19
Retainer
Other Legal services
successor Agency "
j Housing
Total:
Total:
Total:
$ 535,000 _ $
$ 0 _ $
$ 50,000 $
$ 840,000 $
$ 260,000 $
$ 570,000 $
$ ❑ $
$ 50,000 $
$ 880,000 $
448,000
29,000
44,000
746,000 i
251,000 j
506000 l
73,000 1
85,000
915,000
$ 268,000
$
162,000
$ 598,000
$
397,000 i
$ 0
$
23,0001
$ 85,000
$
22,000
$ 951,000
$
604,000
' Actual expenditures for Fiscal Year 2018-19 are year to date as of March 19, 2019
Successor Agency legal costs are paid from the administrative allowance approved as part of the Recognized
Obligation Payment Schedule and do not have a separate budget
City staff also examined the staffing levels and associated costs for an in-house counsel. The
City of Palm Springs transitioned from contracted city attorney services to in-house counsel
nearly two years ago and provides an illustrative example. Therefore, a cost estimate to
provide in-house counsel can be found by examining the City of Palm Springs; not only are
they a neighboring jurisdiction, but also used frequently as a comparator agency. In regard to
staffing levels, the City of Palm Springs budgeted for the following five positions in its City
Attorney's Office: City Attorney, Assistant City Attorney, two Paralegals, and Executive
Administrative Assistant. City staff would anticipate needing similar staffing levels for an in-
house counsel, with the possible exception of one Paralegal position in the amount of
approximately $94,000. These estimates also do not take into consideration long-term costs
associated with pension liabilities and other post -employment benefits. In Fiscal Year 2018-
19, the City of Palm Springs total costs to provide an in-house counsel was budgeted at
March 28, 2019
City Attorney Services
Page 3 of 4
approximately $1,495,000. The table below displays a current fiscal year budget comparison
for legal services between our jurisdictions.
Agency St_a_ffi_nRLe►►els (FCEs) I Budget
Palm Springs (in-house) 5.0 $ 1,495,000
Palm desert [contracted] NIA $ 951,000
' Includes one additional positron, Paralegal ($94,000), relative to the anticipated creeds of the City of Palm Desert
A northern Cal ifomia jurisdiction recently conducted an analysis of counsel types as well. City
staff recognizes the jurisdictions surveyed (see Attachment B) are located in a region
generally with a higher cost of living than the Coachella Valley; therefore, some costs may
not be as comparable without further evaluation. However, the budget variance between
contracted city attorney services (average $662,000 1 median $641,000) and in-house
counsel services (average $1,518,000 / median $1,505,000) is relevant to this cost analysis.
Please note that providing an in-house counsel is more costly by average (229%) and median
(234%) within this survey. As a result of this jurisdiction's analysis, its City Council recently
approved transitioning from in-house counsel to contracted city attorney services. A modified
version of the jurisdiction's survey can be found as Attachment B.
Non-monetary Analvsis
City staff examined non -monetary advantages and disadvantages regarding counsel types.
This analysis is based upon information in publications from professional associations and
documentation from other jurisdictions that considered transitioning counsel types. The most
significant advantages and disadvantages relate to availability, institutional knowledge, and
staffing flexibility.
A ►railability
In-house counsels tend to provide greater and immediate access to City Council and City
staff since they are located onsite. As a result, many jurisdictions require the contracted city
attorneys to have set days and office hours at City Hall to address availability concerns.
Institutional Knowledge
Since in-house counsels are considered municipal employees, there is a greater likelihood to
preserve institutional knowledge even if there are staffing changes. For example, if the City
Council approved contracted city attorney services with another legal firm, the jurisdiction
stands to lose a great deal of institutional knowledge. Therefore, having in-house counsels
tend to mitigate these types of potential disruptions and safeguards institutional knowledge.
March 28, 2019
City Attorney Services
Page 4of4
Staffing Flexibility
Contracted city attorney services provide greater staffing flexibility. The City Council retains
the discretion to request another city attorney or other personnel from the contracted legal
firm. A contracted firm also provides the City with the availability of expertise in a particular field,
which can change based on the City's needs. In addition, the City Council has the discretion to
terminate the agreement with the legal firm. However, the city attorney position of an in-house
counsel typically has an employment contract; terminating an employment contract and
subsequently conducting a recruitment for such an executive position can be costly.
Furthermore, although the City Council may appoint and remove the city attorney at its
discretion, only the city manager may hire and terminate other legal personnel as an
administrative function. Therefore, implementing staffing changes is challenging due to
personnel rules and regulations. Ultimately, to remove a city attorney or terminate other legal
staff is likely a much more cumbersome process relative to contracted city attorney services.
Fiscal Analvsis
There is no impact due to this direction and/or action to the General Fund. This agenda item will
require future City Council consideration that will include the anticipated costs to the General Fund
based on that action. Examples of those costs are provided in this staff report for reference.
LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW
N/A N/A
Robert W. Hargreaves Lauri Aylaian net Moore
City Attorney City Manager Director of Finance
ATTACHMENTS:
A. Frequency Analysis
B. Northern California Survey
C. Contract Extension
CITY MANAGER
Lauri Aylaian
City Manager
Attachment A
City of Palm Desert
City Attorney Services Review
Frequency of Counsel Types
Marina
22,424
Contracted
Lathrop
24,268
In-house
Riverbank
25,224
Contracted
Eureka
26,362
Contracted
13rawley
27,417
Contracted
City
29,192
Contracted
lSuisun
Atascadero
31,417
Contracted
Goleta
31,949
Contracted
Pleasant Hill
35,068
Contracted
36,703
Contracted
IHollister
Stanton
39,470
Contracted
Palos Verde
42,723
Contracted
(Rancho
San Bruno
46,095
In-house
Lincoln
48,951
In-house
Aliso Viejo
51,950
Contracted
Palm Desert
52,769
Contracted
Novato
54,551
Contracted
Santee
56,994
Contracted
Porterville
60,798
Contracted
(Encinitas
63,158
Contracted
Tulare
65,982
Contracted
Davis
68,704
Contracted
Union City
72,991
Contracted
Perris
77,837
Contracted
(Tustin
$2,344
Contracted
Merced
86,750
In-house
Redding
91,357
In-house
Santa Barbara
94,807
In-house
San Mateo
104,490
In-house
Santa Maria
108,470
In-house
Clovis
113,883
Contracted
Methodology:
The jurisdictions above (excluding Palm Desert) represent an equal distribution (every eighth jurisdiction)
beginning with the City of Marina {population: 22,242) and ending with the City of Clovis (population: 113,883).
Population data was obtained by the California Department of Finance (2018), information pertaining to
jurisdictional status (contracted vs. in-house counsel) was obtained via City websites or phone calls.
3
m
CD a D 0 o a o
D a o 0 D a o
Q o a a a o o a
U N X rr4 co Ln o m Ln M m
m w N m r. ;D Ln o
m m N rti N
CO :3
r`I m
114 th At" Ar>- .^ vv 40.
o D a 0 0 o a
D CD a oD a 0 0 a oa
Q ui ri r.i r: m (n co'
V y Ln %t ch m U) m a
00 +Sa m r• 00 m �* m
1� rY'I N ri rl'
3
rl �
T
to i!} - !n -L4 iA Ln V1 -
0 0 a o 0 0 a
d y o a 0 0 o a a
00 o d v r, & v
U :3 Ln N o0 m N rV Ill
N. = rti r• ul Lo -:t In N
rrr ni ri r-i
LG y
rI CL
LJ LL
in. Ln 'In An t1} ill Ln
o a r• Ln oa o a
d a rn ry m o a
rl c 1 Ln N r-I rl Ln
rI
MW
cn C:p
00
n 0 rr-l' 0 w r0n n m
W a La Ln r-4 r-1 rl -4
J
r ?
a
N
W m —
pl L y L-
LL 11 LL LL C LL0 0
C
U u
C
L v
LL C.J
C
C
m
7
sz
O
CL
m 0o N ❑1 Ln Lc rV
r• n T 1• Ln N LO
r, Ln n Ln
lD ❑1 Ln ra a N 6
Lo r. 00 m d LQ
[1
�_
C
-a
2
Ln — O
0
0
0
a
fu
d
2=
2
JO U U
a 0 a a D 0 0 o a
0 0 a a D 0 0 0 a
Qa o D o a D a a o
V, oa w ❑i ni p Ln m N
y w Lo m�t a r• m Lo �.D
Ch pp .--4 a Oo r, r• Ln v m m
Ty "r3 r-i ri
00 3
,4 Co
r
LL
An. tn• to 4^ trF trF in +rL tn.
0 0 0 0 0 0 0 0 0
Q o 0 0 o v v a 0 0
v W Ln -4 rev m N Wm m kD
0000 M M O'k LD r• t.0 LA IcT m m
r. 7
,y m
}
Li
t/) trF tPF il' l(n Vh i.n -L4 lue)�
a a a D o 0 a D a
a D 0 0 a o a a 0
D p1 0 o a a a❑ o o a
oo 6 m rri m o m' 6
U m w N 00 N r• W -4 00
A r-I to 0 00 r� Ln �t N
LB y
CL
x
LL. W
vl.->ntfrtrLto v}4^V'� IL4
tic
C
N
LLn W WZ Z Z Z Z Z Z Z Z
0 �
Q
U
r-I a a N�t N r-I r- m
M N� NM m N N N r4
7 71
C T
U
Ln
N
O T
G2 +•
1.r u l.7 V U
a 75 5 Y
LA i LL LL LL LL LL-
0
= U U U
0
LL U
C
7
rz
0
Q.
V r� �o 0 M Ln r-I M N
ri 00 N rl N Ln rV w a
Ln Ln 0�t m 1-4 w 0 qT
r-I' r, N Ln 00 N 00 a rI
..o (fl m r• 00 r• a m m
v
L]
L) L
LL rro U qp O
c 0 v tR"I c 0"
ra C a J ❑ O Q
❑ Vi � � V] � [J cA J
Contract No. C28880
AGREEMENT TO EXTEND THE TERM OF A LEGAL SERVICES AGREEMENT
Agreement to Extend the Term of a Legal Services Agreement (Agreement) is entered
into by and among the City of Palm Desert (City), and Best, Best & Krieger LLP (BB&K).
RECITALS:
A. City and BB&K entered into an Agreement for City Attorney Services (C28880)
dated August 27, 2009, and extended said agreement (C28881) on August 28, 2014.
B. City wishes to continue to retain BB&K to provide legal services to City, and BB&K
wishes to continue to provide legal services to City.
NOW, THEREFORE, City and BB&K agree, as follows:
Section 1. Agreement term, as amended, is hereby extended to August 28, 2024. All
other provisions shall remain the same.
:::
Best, Best& Krieger, LLP
City:
City of Palm Desert
By: By:
Robert W. Hargreaves, Partner
in
Attest:
as
Susan Marie Weber, Mayor
Lauri Aylaian, City Manager
Rachelle D. Klassen, City Clerk